New South Wales Court of Criminal Appeal CITATION: SIMPSON, Danielle v R [2007] NSWCCA 348 HEARING DATE(S): 8 October 2007 JUDGMENT DATE: 14 December 2007 JUDGMENT OF: Giles JA; Hulme J; Hislop J DECISION: (1) Grant leave to appeal. (2) Appeal allowed. (3) Sentence quashed and in lieu thereof sentence the applicant to imprisonment for a non parole period of three years commencing on 18 March 2006 and expiring on 17 March 2009 with a balance of term of one year six months to commence on 18 March 2009 and expire on 17 September 2010. The applicant will be eligible for release to parole on 17 March 2009. CATCHWORDS: CRIMINAL LAW - sentence - Henry guideline - rehabilitation considerations. LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Fahs [2007] NSWCCA 26 CASES CITED: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v Simpson [2001] NSWCCA 534 Veen v The Queen (No 2) (1988) 164 CLR 465 PARTIES: Danielle Simpson v R FILE NUMBER(S): CCA 2006/5272 COUNSEL: P Johnson (Appellant) T Thorpe (Crown) SOLICITORS: Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/0231 LOWER COURT JUDICIAL OFFICER: Bennett DCJ LOWER COURT DATE OF DECISION: 8 December 2006 IN THE COURT OF CRIMINAL APPEAL 2006/5272 GILES JA HULME J HISLOP J Friday 14 December 2007 Danielle SIMPSON v REGINA Judgment 1 THE COURT: On 17 October 2006 a District Court jury returned a verdict of guilty to an indictment that the applicant did "rob [the victim] of a digital camera, the property of [the victim], while being armed with an offensive weapon, namely a knife" contrary to the Crimes Act 1900, s 97(1). The maximum penalty for such an offence is 20 years imprisonment. 2 On 8 December 2006 the applicant was sentenced for that offence to a non parole period of four years imprisonment, to commence on 18 March 2006 and to expire on 17 March 2010 with a balance of term of two years imprisonment to commence on 18 March 2010 and expire on 17 March 2012. 3 The applicant has sought leave to appeal against that sentence. 4 The facts of the offence are that on 18 March 2006, the victim, a slightly built 20 year old woman, was walking in Bridge Road, Belmore toward Burwood Road where she was intending to catch a bus. She was carrying her digital camera in her right hand and a bag over her left shoulder. As she walked along she saw the applicant, who was physically much bigger than her, standing in front of her, saying "Give me your bag". The applicant grabbed the victim by the collar and took hold of her bag but the victim resisted and struggled to keep hold of her property. She then saw that the applicant was holding a knife and called out for help as the struggle continued. She fell to the ground and dropped the camera and as she attempted to retrieve it, the applicant seized it, at the same time persisting with her efforts to take the bag. People began to gather and the applicant attempted to flee, but was held by bystanders. She dropped the knife. The knife had an overall length of 15-16 cm with a black handle of 5-6 cm. In the attack the victim suffered scratches to her hand and some scuffing to her jeans. 5 The applicant is an only child and was born in 1978. She had a happy childhood until the age of 11. Thereafter she had difficulty adjusting to high school and fell into conflict with her parents. She became pregnant at 17 and left her parents' home after the birth. 6 She then commenced a de facto relationship with her present partner. The relationship has continued for about 10 years. The partner has a drinking problem and suffers from paranoid schizophrenia. 7 The applicant has three surviving children. They have lived in foster care since December 2000 when they were removed from the applicant and her partner as a result of their continued drug use and episodes of domestic violence. Another child died on 2 August 2005 from Sudden Infant Death Syndrome when aged six weeks. 8 The applicant commenced smoking cannabis at age 12. She was using amphetamines and cocaine recreationally at age 19 and at approximately age 20 she was introduced to heroin, to which she soon became addicted. 9 The applicant has had limited education and has had some vocational training and a limited work history. 10 The applicant's criminal record was described by his Honour in the following terms: "The offender has a history of court appearances beginning in August 1996 at the Bidura Children's Court when she was placed on probation for an offence of steal from dwelling. She was then 17 years of age. In April 1998, she was fined for offences of dishonesty in the Local Court, Balmain. On 21 November 2000 in the Fairfield Local Court she was fined for entering enclosed lands. On 13 June 2001 she was convicted in her absence upon a charge of goods in custody and on 14 November 2001 in the Central Local Court she was fined for goods in custody. Significantly, on 19 October 2001 she was sentenced to imprisonment for four years, including a non parole period of two years to commence on 19 October 2001 in respect of an offence of robbery in company." (An appeal from that decision resulted in the variation of the commencement date of the sentence to 17 September 2001.) 11 The applicant was in custody, bail refused, in respect of the subject offence from 18 March 2006. During that period she recommenced Buprenorphine treatment. She engaged in a number of vocational programmes in the hope of increasing her prospects for employment. She also had a job in the kitchen for some months prior to the imposition of the sentence. 12 The applicant has advanced three grounds of appeal. Ground 1: The sentencing judge erred in finding as an aggravating factor that the offence involved planning 13 In his remarks on sentence, the sentencing judge found the offence had "…involved some limited degree of planning, for although her victim was random, I am satisfied beyond reasonable doubt that the offender was at the place where the offence was committed awaiting for an appropriate victim to rob for money or property for the acquisition of drugs. The diminutive stature of [the victim] qualified her as an appropriate target for this purpose." 14 His Honour later in his remarks on sentence said in relation to aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999: "Next paragraph (n): the offence must have involved some degree of planning and organisation, in light of the offender having with her the knife with which she was armed. Although the selection of her target was random, it must be the case that the offender had planned to take an opportunity to commit such an offence if an appropriate victim came along." 15 The aggravating factor under s 21A(2)(n) is in the following terms: "The offence was part of a planned or organised criminal activity." 16 Counsel for the applicant submitted that his Honour, by referring to planning and organisation under s 21A(2)(n), had given this aspect of the matter a greater prominence than was appropriate. He also relied upon a comment of Howie J in R v Fahs [2007] NSWCCA 26, where his Honour said in respect of that provision: "The wording of this provision seems to me to convey more than simply the offence was planned." 17 In our opinion, the evidence establishes there was planning of a limited degree for the reasons which his Honour stated. It was that degree of planning which his Honour took into account. His Honour was entitled to have regard to that factor in sentencing the applicant whether it be pursuant to s 21A(2)(n) or s 21A(1)(c) of the Crimes (Sentencing Procedure) Act. Indeed, counsel for the applicant at the sentencing hearing asked his Honour "to accept there would have been a limited degree of planning". 18 We reject this ground of appeal. Ground 2: The sentencing judge erred in his treatment or approach to the applicant's prospects for rehabilitation, having regard to her criminal history Ground 3: The sentence is manifestly excessive 19 As previously observed, the applicant had been sentenced in 2001 to four years imprisonment for robbery in company with a two year non parole period. Whilst serving this sentence she had been treated with Buprenorphine, an alternative to heroin, with positive results. The applicant was released to parole in respect of that sentence on 16 September 2003. She continued to use Buprenorphine for a time following her release. There was no record of any offence by the applicant subsequent to her release to parole other than the offence the subject of this application. 20 The applicant gave evidence at the sentencing hearing that following her release from prison she was obtaining Buprenorphine from a private clinic and paying for it. She was not coping financially and the doctor gave her time to go to a public hospital to obtain the Buprenorphine without charge. However, "something got confused with the scripts. Like, my time had run out at the hospital, but I wasn't aware of that, so I had to go back to the private clinic and I didn't have the money at the time, so I was cut off." She said that she had trouble getting the Buprenorphine from the end of January and all of February. She started using heroin at the end of February, early March. She said that if she had been able to access the Buprenorphine she would not have used heroin. 21 This evidence was consistent with comments in the ERISP conducted on 18 March 2006 where the applicant said: "'Cause that's what it's all about, they cut my, I've been tryin' for two weeks to get back on the medication…they won't let me back on it until Tuesday" and "Q49 Sorry, where are you living at the moment? A In Belmore… Q59 Okay. And how long have you lived there? A. Um, not that long, I've only been there a couple of weeks, the address in Punchbowl was my address and our lease ran out so we, we left, we didn't wanna renew the lease cause that's where our son died, so" 22 This evidence however contrasted with the pre sentence report and a psychologist's report dated 28 November 2006 which were before his Honour. His Honour, in his remarks on sentence, quoted from the pre sentence report as follows: (a) "It appears that the death of their child [from SIDS on 2 August 2005] was the prelude of a marked decline in Ms Simpson's and her partner's circumstances, they moved out of their accommodation as they found it too emotionally distressing to remain there, as this was the premises where their baby died. Subsequent instability ensued and Ms Simpson returned to using drugs (heroin)…" (b) "It appears that Ms Simpson had a great deal of difficulty accessing a subsidised clinic for her Buprenorphine when in the community and it appears she stopped taking her dose and subsequently relapsed, resulting in the offending behaviour. Ms Simpson reported that she was using heroin approximately three times per day prior to her arrest." 23 His Honour also quoted in his remarks on sentence from the psychologist's report (which the applicant said she had been through and agreed with): (a) "In the community, Danielle reports that she had difficulty finding a subsidised clinic to obtain Buprenorphine, and she ceased taking her dose. She returned to heroin usage after the death of her baby from SIDS." (b) "Then, while on parole, she lost her little boy through SIDS. Danielle and her husband moved out of their house where her boy had died 'because it was too distressing' and she felt too much grief to remain there. The couple stayed with people they knew only superficially [who were heroin users] and Danielle returned to drug usage…" (c) "She was unable to deal with her young baby's death without returning to heroin usage. In her grief and distress, her life destabilised when she and her partner moved out of their home. Danielle wanted to obtain money for heroin." 24 His Honour, after considering the pre sentence and psychologist's reports said in his remarks on sentence: "The history of heroin use and the return to the use of heroin as a consequence of the loss of her son stands in contrast to what was said to me in evidence by [the applicant]…Her sworn evidence is that she was coping with the undoubtedly severe grief that she was suffering as a consequence of the loss of her son, and had continued on the maintenance programme up to and beyond the time of the little boy's death, and that it was the inability to obtain the Buprenorphine for a period of one to two weeks which led her to resort once again to heroin." 25 His Honour did not expressly resolve this seeming conflict in the evidence. However, he implicitly accepted the applicant's sworn evidence as he concluded: (a) "This view [as to the applicant being less than robust at the time of the offence because of the ravages of drugs] is qualified to some extent by the evidence that has been given by the offender before me today, in which she said that up until about a week before the offence, she had been taking her alternative medication for the management of her addiction to heroin. It must follow from that, that she was not, at the time of the offence, experiencing long term effects from the addiction to heroin manifesting in her physical appearance." (b) "One must have sympathy for the losses that the offender has suffered in her life and I note that according to the reports, the offender has suggested those events as some explanation for her continued use of drugs. However, as I have noted, such representations are inconsistent with what the offender has had to say to me here. In any event, I am of the view that those tragedies, as grave as they are, do not offer any justification in the circumstances of this offence for the offender's behaviour on this occasion." (c) "As has been pointed out, accepting that what she said in the witness box is the truth of the matter, her lack of funds at the point in time when she found herself unable to acquire the alternative legitimate substance is something of her own doing." (d) "However, it is troubling that she allowed herself to mismanage funds sufficiently to consequently lose access to the alternative and legitimate substance, by means of which she could manage her addiction to heroin and that she thereafter embarked upon the use of heroin three times per day, and so readily committed an armed robbery with which to acquire funds to obtain further heroin." 26 Thus, on the preferable reading of the sentencing judge's reasons, his Honour accepted the applicant's evidence to the effect that she had started using heroin only shortly before the offence when she could not get the Buprenorphine. 27 His Honour nonetheless considered that her prior offending was relevant to sentencing in the manner described in Veen v The Queen (No 2) (1988) 164 CLR 465 at 677-8, taking it into account as an aggravating factor identified in s 21A(2)(d) of the Crimes (Sentencing Procedure) Act. It is, with respect, not entirely clear how it affected the sentence he imposed. 28 The judge said that the relevance of prior convictions as described in Veen v The Queen (No 2) was - "…apposite to this offender, who, by the history of offending, reflected in her antecedents and the conduct in which she has engaged on this occasion, has demonstrated that some care is required when assessing her prospects of rehabilitation from such misconduct. When reviewing this history, I have kept in mind the following passages. The earlier conviction for robbery, with the benefit of an extended period of parole which, according to the pre-sentence report, concluded successfully, demonstrates that this offence is not an uncharacteristic aberration, but is a further occasion of the offender's propensity for violent theft to acquire funds when in need of them for the acquisition of drugs. This pattern continues notwithstanding the opportunity for rehabilitation given to the offender in the previous sentence. I do not overlook the grief from the loss of her child toward the end of the parole period and I accept that there may be some aspect of this offering an explanation for her conduct. It certainly explained why she moved from the house in which she and her partner lived and why they moved to where they ultimately settled with others who were users of heroin. One can also understand that heroin might have provided some comfort for the offender. However, she has also had the benefit of treatment and access to an alternative drug. In the circumstances, her decision to resort to the use of heroin does not provide much in the way of mitigation. As has been pointed out, accepting what she said in the witness box is the truth of the matter, her lack of funds at the point in time when she found herself unable to acquire the alternative legitimate substance is something of her own doing." 29 The judge later said - "There is an indication that the offender had reached a point at which she might have finally abandoned her use of illicit drugs and developed an existence in which she would evolve emotionally and economically without the need for drugs and the commission of crime from which to fund it, thereby providing some justification for an appropriate reduction of the overall sentence, indicated otherwise by the objective seriousness of the offence. However, it is troubling that she allowed herself to mismanage funds sufficiently to consequently lose access to the alternative and legitimate substance, by means of which she could manage her addiction to heroin, and that she thereafter embarked upon the use of heroin three times per day, and so readily committed an armed robbery with which to acquire funds to obtain further heroin. It has been submitted strenuously on her behalf that this is something of an aberration within the context of the period of time since her release from her last sentence and the successful completion of her parole. My initial response to that was that yes, that it was - this may well be an aberration within that context. However, I must look beyond that and look at the offender's conduct and antecedents to assess whether in fact it is aberrant behaviour or conduct into which the offender will readily and easily fall, requiring the application of the principles stated from R v Veen (No. 2) to which I have referred. Even if it be the case that this is something of an aberration that the offender has suffered no more than a relapse along the road to rehabilitation that commenced with her release on parole following her last robbery offence, in my assessment, It would be counter-productive to that continued rehabilitation to permit her release to the community at this stage or within the immediate or foreseeable future. I do not believe there has been any sufficient demonstration by the offender that she has reached the point where she can be safely released into the community without the risk of further offending. I am of the view that the discipline of a custodial sentence is essential to this offender at this stage of her life. She has demonstrated that when left to her own devices, she has not had the capacity to maintain a lifestyle that will facilitate her abstinence from drugs or the commission of crimes to support their use." 30 These passages have some difficulties. The offence is bluntly found to be "not an uncharacteristic aberration", then an initial response to the contrary is expressed, and ultimately whether "application of the principles stated from R v Veen (No 2)" is required is rather left up in the air. On the assumption that the offence was an aberration, the applicant's rehabilitation was seen to be promoted by "the discipline of a custodial sentence" because she "has not had the capacity to maintain a lifestyle that will facilitate her abstinence from drugs or the commission of crimes to support their use". This seems to refer to the earlier statements that the inability to pay for the Buprenorphine was "something of her own doing" and that the applicant "allowed herself to mismanage funds sufficiently to consequently lose access to the alternative and legitimate substance". The sentencing in the end appears to have involved some kind of "application of the principles stated from R v Veen (No 2)", on the basis that the re-offending through incapacity to maintain a drug and crime free lifestyle warranted greater severity of sentence. 31 It is not necessary to explore the validity of this beyond saying that in our view it proceeded on a flawed apprehension of the evidence. 32 The applicant's evidence was that she was paying a private clinic for her Buprenorphine. She was not coping financially upon the death of her child and with the need to pay for the funeral, and the doctor gave her scripts to obtain it from a public hospital without payment. She was unexpectedly required to pay for the Buprenorphine when "something got confused with the scripts". When the judge said to the effect that the applicant had demonstrated that when left to her own devices she had not had the capacity to maintain a drug and crime free lifestyle, the incapacity material to the offending was not truly one of lifestyle. The applicant must have had to pay for heroin, hence the offence in order to get money, but there was no evidence of comparative costs or exploration of mismanagement of funds resulting in resort to heroin rather than Buprenorphine. To say that the applicant mismanaged her funds and that the inability to pay for the Buprenorphine was something of her own doing does not seem to us correctly to state the position. 33 The difficulties with the judge's remarks on sentence do not mean that the sentence was erroneous. It is necessary that this Court consider that some other less severe sentence is warranted in law and should have been passed; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704. 34 In our opinion, and with regard to the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, the sentence was excessive. There was reason to give rehabilitation prominence in the sentencing considerations, in that the applicant had completed her parole and had not offended for a further six months, and until the confusion with the scripts had legitimately used Buprenorphine without resort to heroin. That had to be tempered by the re-offending, but the re-offending was in circumstances which left rehabilitation of importance. The applicant was not a young offender with little or no criminal history, and she did not plead guilty (although the contest was over possession of a knife rather than the robbery itself). These features tending to a more severe sentence were balanced against the importance of rehabilitation, and on a balance of features in our opinion a sentence in the four to five year range indicated in R v Henry was appropriate. 35 With a view to any re-sentencing, there was read on the applicant's behalf an affidavit from her and one from her solicitor annexing copies of reports made by gaol authorities as to the applicant. The latter contains a number of complimentary references to the applicant's working in prison. There are two incidents where she has been found in possession of medication not prescribed for her but, given the absence of any evidence that she has been disciplined for these events, we do not regard them as of more than moderate weight. We have also taken into account as s 21A of the Crimes (Sentencing Procedure) Act requires be done, such of the matters referred to in that section as are known to the Court. However, given the issues as they were presented during the appeal, we do not regard it as necessary to refer to these seriatim. 36 The special circumstances found by the judge should be maintained. The orders of the Court are as follows: 1. Grant leave to appeal. 2 Appeal allowed. 3. Sentence quashed and in lieu thereof sentence the applicant to imprisonment for a non parole period of three years commencing on 18 March 2006 and expiring on 17 March 2009 with a balance of term of one year six months to commence on 18 March 2009 and expire on 17 September 2010. The applicant will be eligible for release to parole on 17 March 2009. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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